Consumer Complaint No. 04 of 2010

Date of filing: 08.01.2010                                                                   Date of disposal: 30.6.2017

Complainant:               Tarun Kumar Dutta, S/o. Panchanan Dutta, resident of Kanksa Hattala, PO: Panagarh Bazar, District: Burdwan, PIN – 713 148.

-V E R S U S-

Opposite Party:        1. M. R. Associated, G. T. Road, Muchipara, Durgapur – 713 212, District: Burdwan.           

                                2. Classic Automobiles, Shastri Nagar, Dhanbad, PIN – 836 001.

                               3.  Lexus Motors Limited, 209, A.J.C. Bose Road, Kolkata – 700 017, Workshop at: Budgbudg Trunk Road, Rampur, Kolkata – 700 141.

                              4.   B. D. Motors Limited, Junction Mall, City Centre, Durgapur – 713 216.

      5.   The Director, TATA Motors Ltd., having its office at: TATA Motors, Passenger Car Business Unit, KD-03, Car Plant, Sector 15 & 15A, PCNTDA, Chiiikhali, Pune – 410 501.

Present:      Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:      Ld. Advocate, Subrata Ghosh, Sourav Kumar Mitra & Suvro Chakraborty.

Appeared for the Opposite Party No. 1,2 &3:  None (ex parte).

Appeared for the Opposite Party No. 4:  Ld. Advocate, Souren Mitra.

Appeared for the Opposite Party No. 5:  Ld. Advocate, Biswanath Nag & Suman Bez.

J U D G E M E N T

This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have neither remove the defects from the vehicle in question purchased by him nor refund the cost of the vehicle as paid by him during its purchase.

The brief fact of the case of the Complainant is that he purchased a Sumo Victa LXDI from Tata Motors Company-OP-2, being the authorized by the OP-5 on 07.03.2009. At the time of its purchase financial assistance was taken from Tata Finance. Since its purchase the Complainant observed that there was some mechanical fault as well as manufacturing defects in it. The vehicle has more pressure at the right side at the time of its starting and the back side wheel larch the body when permissible occupant taken in the vehicle. As the two wheels are touching the body of the vehicle, hence the body as well the wheels are going to be damaged. When the Complainant went to the OP-1 for free servicing for the first time, assurance was given that all the faults will be recovered within a very short span. As per direction of the OP-1 the Complainant used to drive the said vehicle, but the condition did not improve. At the time of second free servicing the OP-1 received a sum of Rs.287/- from him towards repairing cost and assured that the fault will be removed after driving it for some days. But after lapse of a quite considerable period when the defects/fault was not removed, then the Complainant again approached before the OP-1. He was told by the OP-1 to approach before the OP-2 from where the vehicle was purchased and accordingly he went to the OP-2. But inspite of making payment for Rs.799=00 to the OP-2 towards the repairing cost, the fault could not be removed. Thereafter the Complainant went to the OP-1 and after consultation with the engineers of the OP-5 the OP-1 told the Complainant to place the vehicle before the OP-3. The OP-3 received a sum of Rs.1, 097=00 from the Complainant towards the repairing cost of the subject vehicle, but the defect persisted in it. The OP-3 received repairing charges from the Complainant on three occasions though the vehicle was under the warranty period. As the Complainant lodged complaint to the OP-5 regarding the defects in the vehicle, the OP-3 issued a letter to him through which request was made to contact with Mr. Debashish Mukherjee of the OP-4 along with the vehicle, who had gathered knowledge about the defects in the said vehicle. When the Complainant approached the OP-4, then the OP-4 started to trial the same without making any entry of the vehicle in its register. The OP-4 took some photographs of the vehicle and told that they will send the photographs to the Company and it will inform him for coming further along with his vehicle as and when the OP-4 will received information from the Company. While he asked for written documents then the OP-4 threatened him and due to this reason the Complainant had to leave the place. As his grievance have not been redressed by the OPs hence having no alternative the Complainant has filed this complaint praying for direction upon the OPs for refund of the entire cost of the vehicle paid by him at the time of its purchase along with compensation to the tune of Rs.2,00,000=00 to him.

The petition of complaint has been contested by the OP-4 by filing written version contending that this complaint is filed by the Complainant with a view to harass this OP as well as to obtain illegal and wrongful gain. As the Complainant has suppressed the material truth and distorted the fact, hence the complaint is liable to be dismissed. Moreover having no relationship with this OP, the OP was not liable to render any services to the Complainant in respect of the defective vehicle in question. Therefore no cause of action has arisen for filing this complaint against this OP. According to the OP-4 the complaint is liable to be dismissed with cost.

The OP-4 has adduced evidence on affidavit. The OP-4 has also filed written notes of argument with a copy to the other side. The OP-5 has filed brief notes of argument with a copy to the other side. Application was made for appointment of an Expert by the OP-5 on 19.11.2010, Ld. Expert was appointed namely Mr. Harisadhan Mukherjee, he filed his report being an employee of the MV Department, but before completion of his evidence he retired from his employment, thereafter another application was filed by the Complainant praying for appointment of an expert and submission of the expert opinion from Automobile Association of Eastern India, but the said department has intimated this Ld. Forum by issuing letter dated 14.05.2015 that at present there is no expert examiner for examination of the questioned vehicle with them. Thereafter the Complainant has filed further application praying for appointment of an Expert and his opinion, accordingly Mr. Tanmoy Roychowdhury was appointed as an Expert, expert opinion was filed by Mr. Roychowdhury, Complainant did not challenge the expert report by filing questionnaire, the OP-5 challenged the expert report by filing questionnaire and the Ld. Expert has filed his reply to the questionnaire of the OP-5. 

The petition of complaint has been contested by the OP-5 by filing written version contending that this complaint does not fall within the definition of a consumer dispute under the Consumer Protection Act, 1986 as there is neither any manufacturing defect proved in the vehicle in question nor any deficiency in service has been established against this OP, hence the averments/allegations made in the complaint are all frivolous, baseless and misconceived. Therefore the complaint is liable to be rejected in totality. The OP-5 has mentioned that the Complainant is not a consumer as he used the insured vehicle for commercial purpose in order to generate profit. The vehicle has covered more than 59,551 kilometers within the span of 17 months. Such extensive usage of the vehicle establishes that the vehicle had not been used for personal purpose. In this respect the OP-5 has placed reliance on the judgment of Laxmi Engineering works vs. PSG Industries Institute (1995 II CPJ I (SC) held that if any person has obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the purview of the Consumer Protection Act. On this score alone the complaint is not maintainable and ought to be summarily rejected. The OP-5 has submitted that the Complainant purchased the questioned vehicle from the OP on 09.03.2009 which required mandatory servicing and replacement of specified components i.e. air filter, fuel filter, engine oil, coolant etc at recommended intervals as mentioned in the owner’s manual and service book given at the time of sale for smooth running and optimum performance. But the Complainant had failed and neglected to follow the guidelines given in the owner’s manual and this OP-5 has relied on the terms and the conditions of warranty of the utility of the vehicle in question and owner’s manual and service book. During free and paid services the Complainant was advised to follow the instructions given in the owner’s service book and manual, but he had failed to change the engine oil of the vehicle at regular intervals and operated the vehicle up to 39,329 kilometers without changing oil. The Complainant operated the vehicle for 20,000 kilometers with oil having low viscosity which in turn could have contributed to alleged problems in the vehicle. It is submitted that as per the clause 1 of the warranty applicable for the subject vehicle, the warranty shall be limited for 18 months from the date of sale of the vehicle irrespective of the date of the sale of the vehicle, however for commercial applications, the warranty shall be limited to 18 months or 50,000 kilometers whichever occurs earlier subject to fulfillment of other terms and conditions of the warranty. In this case, the OP relied on the clause 5 of the terms and conditions of warranty, which states as-‘the warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishments, our authorized dealers or service centre or service points in any way, so as, in our judgment which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding, the vehicle is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us or such services prescribed in our owner’s manual and service book are not carried out by the buyer through our sales or service establishments, our authorized dealers or service centre or service points.’ The OP has stated that in view of improper maintenance and servicing of the vehicle, the warranty ceases to exit. The Complainant purchased the vehicle being well established product in the market and the he being satisfied with the condition and performance of the vehicle took delivery of the same and the products which are manufactured by this OP are approved by the Automotive Research Association of India (ARAI). All the vehicle manufactured at the plant of this OP are put through stringent control systems, quality checks and test drives by the Quality Assurance Department before being cleared for dispatch to the market. This OP is ‘ISO TS/ 16949’ certified, which is the international standard, hence there cannot be any complaint of deficiency in service against this OP and the complaint deserves to be dismissed with cost. According to the OP-5 this complaint is filed having no expert opinion in the form of evidence from a notified laboratory to prove that that the subject vehicle suffers from problems and defects as alleged to establish the manufacturing defect in the questioned vehicle. The Section 13(1) (c) of the CP Act, 1986 states that ‘where the complaint alleges a defect in goods, which cannot be determined without proper analysis or test of the goods, the District Forum shall after obtaining a sample of the goods, send it to appropriate laboratory with a direction that such laboratory make an analysis or test, with a view to find out whether such goods suffer from any defect, alleged in the complaint or from any other defect…’ Due to absence of any expert opinion this complaint does not bear any value and this Forum shall direct the Complainant for production of an expert opinion in support of his allegation in view of the abovementioned Section.  As the vehicle has covered for about 59,551 kilometers within 17 months i.e. 3,503 kilometers per month hence the vehicle is absolutely roadworthy condition and if there is any problem the same is minor and moreover due to regular, continuous, extensive and faulty usage of the vehicle some problems cropped up. Therefore the prayer for refund of the price of the said vehicle is untenable and unsustainable. In the case of Maruti Udyog (supra) it is observed that the manufacturer cannot be ordered to replace the car or refund its price merely because some defect appears which can be rectified or defective part can be replaced under warranty. So prayer for refund of the cost of the vehicle is contrary to law. As during purchase of the vehicle the Complainant obtained financial assistance from the financial company, hence the Complainant is not the real owner of the vehicle as hypothecation agreement persists. Being the beneficiary of the vehicle the Complainant has no locus standi to file this complaint. Until and unless the manufacturing defect is proved by the Complainant by adducing cogent document, the Complainant cannot seek refund of the cost of the vehicle. The OP-5 has stated as complicated facts and law are involved in this complaint for which elaborate evidence is necessary, the present complaint cannot be maintainable before this ld. Forum and the Civil Court is only the jurisdiction to try with this complaint. According to the Complainant the complaint is liable to be dismissed u/S 26 of the CP Act, 1986 being vexatious, frivolous with cost.

After admission hearing notices were issued upon all the OPs including the OP-5, whose name and address has been incorporated vide order no-6 dated 12.05.2010. All the OPs have received notices, but the OP-1, 2 and 3 did not turn up to contest the complaint either orally or by filing written version. The OP-4 and 5 have contested the complaint by filing written versions. Hence the argument was heard ex parte against the OPs-1, 2 and 3.

After allowing of the application made by the Complainant an Expert of the Motor Vehicles Department, Office of the District Magistrate was appointed by this Ld. Forum namely Mr. Tanmoy Roychowdhury, being Automobile Expert for inspection of the questioned vehicle, who after inspection has submitted his report on 09.09.2016 before the Ld. Forum. From the said report it is evident that the Ld. Expert has opined that ‘the questioned vehicle is suffering from defects, alignment of Axle of the said vehicle is defective, the vehicle suffers from its manufacturing defects, due to misalignment of Axle clearance between left side rear wheel and mud guard/body is not properly for which during running of loaded vehicle and crossing of hump etc wheel and body/mud guard touched together, apart from this no other defects are found.’

The aforementioned opinion of the Ld. Expert had been cross examined by the OP-5 and accordingly the Ld. Expert has filed his reply. In reply the Ld. Expert has replied that the report is submitted on the basis of technical point of view (Q-1), the representative of the OP-5 received the notice served on 02.09.2016 with mentioning ‘objection time is too short’ but the OP-5 did not express his inability for attending inspection on the schedule date. Moreover, as I know that one office of the OP-5 is situated at Durgapur, so 3-4 days’ time is enough for attending inspection and inspected the vehicle in question accordingly (Q-3), since the Ld. Forum did not supply me ant list of the authorized workshop where the vehicle will be inspected, Karmakar Motors, Durgapur is a working workshop, the vehicle was inspected there (Q-4), as the Ld. Forum has engaged me as Automobile expert for inspection the said vehicle, I am competent to submit such report (Q-5). As the Ld. Expert has submitted his qualification certificates/educational certificates, hence the expert did not bother to reply the question no-6 put to him by the OP-5 and advised the OP-5 to peruse the said certificates from the Ld. Forum. In respect of Q-9 the Expert has mentioned that the vehicle is in running condition, there were total 09 passengers including driver in the vehicle at the time of testing (Q-11), no such damages occurred at the time of inspection but it is seen that mud-guard, tyre touched together (Q-14), no modification in the underbody area was found (Q-15), the shock absorber of the vehicle was in order (Q-19), on technical point of view, my observation is that this type of defects causes of manufacturing defect (Q-20), on checking it is understood that the Axle is defective (Q-21), though the vehicle had already travelled more than 59,000 kilometers but due to this defect, tyres, underbody etc of the vehicle will be damaged (Q-23), the defects did not occur due to overloading (Q-24), misalignment of axle is only for manufacturing defect (Q-26).

 From the report of the Ld. Expert and his replies to the questionnaire of the OP-5 it is evident that the questioned vehicle suffers from its manufacturing defects due to misalignment in Axle and misalignment of Axle is a manufacturing defect.

We have carefully perused the record, papers and documents filed by the contesting parties, rulings on which the parties have placed their respective reliance and heard argument at length advanced by the ld. Counsel for the Complainant and the OP-5. Be it mentioned on the date of final argument none was present on behalf of the OP-4, but as the OP-4 has filed its written version, we have considered the same at the time of argument and writing judgment.

During argument the Ld. Counsel for the OP-5 has argued that this complaint is not maintainable before this Ld. Forum as the questioned vehicle was purchased by the Complainant for commercial purpose and in this regard the OP-5 has placed reliance on the landmark ruling of Laxmi Engineering (supra). We have perused the said judgment very carefully and it is seen by us that the observation of the said judgment is not applicable in the case in hand because the OP-5 by adducing cogent evidence cannot prove that the Complainant purchased and used the subject vehicle for commercial purpose. Mere travelling of about 59,000 kilometers does not prove that the vehicle was purchased for commercial purpose. Hence in our view as the OP-5 has failed to prove the contention by cogent documentary evidence, the Complaint is very well maintainable before this Ld. Forum and the Complainant can easily be termed as consumer within the purview of the definition of ‘Consumer’ as enumerated in the CP Act, 1986.

Next contention of the OP-5 is that as no expert opinion has been produced by the Complainant, the complaint is baseless in view of the Section 13 (1) of the CP Act, 1986. In this respect we are to say that since inception parties tried their best for appointment of an Expert for inspection, examination of the questioned vehicle and submission of the expert report. But the step could not be fulfilled due to some unavoidable reason as mentioned earlier, subsequently the application filed by the Complainant praying for an expert was allowed by this Ld. Forum and after appointment Mr. Tanmoy Roychowdhyry as an independent expert he has submitted his expert opinion after inspection and examination of the questioned vehicle. Therefore the second plea as taken by the OP-5 based on which prayer was made for dismissal of the complaint has no value and basis at all.

The OP-5 has stated that this complaint cannot be adjudicated by the Ld. Forum under the scope of the CP Act as some complicated facts and laws are involved in this complaint for which elaborate evidence is required and hence the present complaint should be adjudicated by the competent Civil Court. In this respect  we are to mention to the judgment passed by the Hon’ble Supreme Court in the case of CCI Chambers Co-OP Housing Society Limited vs. Development Credit Bank Limited in the Appeal (Civil) 7228/2001, decided on 29.08.2003, reported in 2003 Supp (3) 139, wherein Their Lordships have held that ‘It cannot be denied that fora at National Level, the State Level and at the District Level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure which at time is accompanied by technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved.’ In the said case reliance have also been placed on the landmark judgments of the Hon’ble Supreme Court in the case of Indian Medical Association (supra), case of Dr. J.J. Merchant & Others (supra), case of Synco Industries (supra) and the case of Amar Jwala paper Mills (India) & Another (supra). Therefore having regard to the abovementioned judgments and observation of the Hon’ble Apex Court we are to say that the OP-5 has neither specified the complicated facts and laws in this complaint nor filed any petition challenging the maintainability of this complaint. So mere mentioning of the said contention cannot be a proof that this complaint cannot be adjudicated upon by this Ld. Forum under the CP Act, 1986 having complicated facts and laws. Such plea of the OP-5 does not stand at all. The OP-5 has mentioned to the judgment passed in the case of Maruti Udyog (supra), wherein it is observed that the manufacturer cannot be ordered to replace the car or refund its price merely because some defect appears which can be rectified or defective part can be replaced under warranty. So prayer for refund of the cost of the vehicle is contrary to law. Upon careful reading of the said observation it is seen by us that the said ruling is not applicable in the case in hand because after purchasing the questioned vehicle as some defects cropped up the Complainant went to the OP-1 on several occasions for removal of the defects, but to no effect. Subsequently he was directed to approach before the OP-2, 3 and 4 time and again, not only that though the vehicle was under warranty clause, during that period also the Complainant had to make payment for rectification and removal of the defects to the abovementioned OPs, inspite of this the defects could not be rectified. The record shows that for removal of the defects/rectification the Complainant had to run from pillar to post, but to effect. As his grievance had not been redressed by the OPs, hence this complaint is filed by the Complainant. Moreover the Ld. Expert has opined that the concerned vehicle suffers from its manufacturing defect and due to misalignment in Axel defects cropped up, which is also manufacturing defect. So as there is manufacturing defect in the subject vehicle, hence the same cannot be removed through replacement of some spare parts. We have notice that since its purchase and within the warranty period several attempts were made by the OPs for removal of the defects, but the same could not be done.

It is true that the grievance of the Complainant have not been redressed by the OPs and at the instances of the OPs he had to run from pillar to post, but being dissatisfied with the service of the OPs this complaint has initiated. In our view such inaction of the OPs can be termed as deficiency in service, for which the Complainant is entitled to get compensation and as by filing of this complaint he has to incur some expenses, hence we are of the view that he is also entitled to get litigation cost from the OPs.

Going by the foregoing discussion, hence it is

O r d e r e d

 that the Consumer  Complaint being no. 04/2010 is hereby allowed on contest with cost against the OP-4 & 5 and allowed ex parte with cost against the OP-1, 2 and 3. The OP-5 is directed either to replace the defective vehicle in question with a new, defect- free and similar model having the same facilities and amenities to the Complainant within a period of 45 days from the date of passing of this judgment, in default, the OP-5 shall refund of the cost of the vehicle as paid by the Complainant during its purchase along with interest @6% p.a. from the date of filing of this complaint i.e. 08.01.2010 till realization of the entire amount to the Complainant within 60 days from the date of passing of this judgment, in default, the above-mentioned decreetal amount (cost of the vehicle +6% interest thereon) shall carry penal interest @8% p.a. for the default period. The OPs are directed either jointly or severally to pay a sum of Rs.15, 000=00 towards compensation due to harassment, mental pain and agony and litigation cost of Rs.5, 000=00 to the Complainant within a period of 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire decree/order in execution as per provision of law.    

Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

Dictated and corrected by me.                                                                

                  (Silpi Majumder)

                         Member

                DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                                 Member                                          Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan